SENEDZA vs. DJOKOTOE [1988]DLHC2316

Date	1988-12-30
Suit No.
Citation No.	[1988]DLHC2316

BENIN J.

LUGUTERAH FOR THE PLAINTIFF.

M. MUMUNI FOR THE DEFENDANT.

[1988]DLHC2316
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													<main id="main" class="content" style="min-height: 60rem" >SENEDZA<o:p></o:p>vs.<o:p></o:p>DJOKOTOE<o:p></o:p>[HIGH
COURT, TAMALE]<o:p></o:p>[1991] 2
GLR 81<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30 DECEMBER 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>LUGUTERAH
FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

M. MUMUNI
FOR THE DEFENDANT.<o:p></o:p>

</div>JUDGMENT
OF BENIN J.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff’s claim against the defendant is for the sum of ¢100,000 being an
interest free loan borrowed from the plaintiff by the defendant in 1985
repayable at monthly instalment of ¢25,000 from July 1985 to December 1985
which amount the defendant has not paid and which remains due and owing.”<o:p></o:p>This is
what the indorsement reads.<o:p></o:p>The brief
facts of this case culminating in the plaintiff’s claim are as follows: The
defendant is the owner of a Land Rover vehicle with registration number GZA
3941. In March or April 1983 this vehicle developed an engine fault and was
towed to the workshop of a mechanic named A. K. Ntim. The mechanic prepared an
initial rough estimate for the repairs for the defendant, but the defendant
could not afford the estimates submitted so he allowed the vehicle to remain at
the workshop for the next two years without an attempt at repairing it.
Sometime in March 1985, the plaintiff, who is a close friend of the defendant,
agreed to foot the expenses for the repairs and in consideration thereof to use
the vehicle for his (the plaintiff’s) business. The mechanic prepared estimates
to the tune of ¢166,500 and repaired the vehicle. The amount spent on the
repairs was disputed by the defendant in evidence. After the repairs the
mechanic drove the plaintiff on the vehicle to the plaintiff’s village, Koloenu
in the Volta Region.<o:p></o:p>A few
days after their return from Koloenu the plaintiff and the mechanic were
literally arrested and taken to the police station following a complaint by the
defendant that the mechanic had stolen his vehicle. At the police station the
matter was resolved that the defendant was to take back his vehicle and then
pay the plaintiff the money he had spent on the repairs. The vehicle was then
released to the defendant. But the defendant could not fulfil his part of the
bargain, so the plaintiff reported him to the chairman of the Unity Club to which
both parties belonged. It was there resolved that the plaintiff should agree to
reduce the amount he was claiming against the defendant to ¢100,000 and that
the defendant should use the vehicle on commercial lines to raise an income to
pay off the money in monthly instalments spread up to the end of December 1985.
Both parties accepted the terms of this settlement and as a result the
defendant issued a promissory note, exhibit B, to the plaintiff. It was when
the defendant still failed or refused to pay that the plaintiff issued out the
writ claiming the relief quoted above.<o:p></o:p>By his
statement of defence, the defendant admitted exhibit B but pleaded that he
refused to honour it because it was “procured by the plaintiff’s fraud.” He
gave the particulars of fraud which in sum was that the vehicle was not
properly repaired as wrong and old parts were fitted. And that as a result the
vehicle was totally wrecked resulting in special damage and financial loss to
the defendant. The defendant therefore counterclaimed for the following reliefs
against the plaintiff:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-bottom:5.0pt;mso-add-space:
auto;text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1). “An order of rescission of the contract
whereby the defendant agreed to repay to the plaintiff the sum of ¢100,000. <o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-bottom:5.0pt;mso-add-space:
auto;text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2). Special damages of ¢148,000 and ¢60,000
being the value of use by the plaintiff of the defendant’s vehicle all to the
total sum of ¢208,000.”<o:p></o:p>It seems
clear from the pleadings that the defendant assumed the initial burden of
proving fraud against the plaintiff entitling him to a rescission of exhibit B.
This is so since he (the defendant) admits making exhibit B but now says it was
procured by fraud. Section 15(1) of the Evidence Decree, 1975 (N.R.C.D. 323)
has the following relevant provision: “Unless and until it is shifted, the
party claiming that a person is guilty of . . . wrongdoing has the burden of
persuasion on that issue.”<o:p></o:p>Was
</main>